APPEAL against the court's decision TO recover accounts receivable
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To the Board of Appeal for Civil Cases of the Almaty City Court of Almaty,
050000, Kazybek Bi Street, 66. 0201@sud.kz
from the Defendant: D.O.F. IIN ............ Almaty, Tole bi str., ..., sq. 5. +7 ...........
Proxy Representative: Law and Law Law Firm
BIN 201240021767 Almaty, 79 Abylai Khan ave., office 304.
info@zakonpravo.kz / www.zakonpravo.kz + 7 727 971 57 58; +7 708 971 57 58.
THE APPEAL
on the decision of the District Court No. 2 of Almaly district of Almaty dated October 28, 2022 On the recovery of accounts receivable
On October 28, 2022, the District Court No. 2 of the Almaly district of Almaty, consisting of: The Presiding Judge Sarsenova K.K., having considered the civil case No. 7520-22-00-2/5584 dated 07/22/2022 on the claim of the Limited Liability Company "Almaty Thermal Networks" (hereinafter referred to as the Plaintiff) against the Defendant D.O.F. (hereinafter referred to as the Defendant) for the recovery of receivables, the Court Decided – The claim of the Limited Liability Company "Almaty Thermal Networks" about collecting accounts receivable – partially satisfy. Collect from D.O.F. in favor of Almaty Thermal Networks LLP, the amount of accounts receivable in the amount of 1,516,061 (one million five hundred and sixteen thousand sixty-one) tenge, a fine in the amount of 89,904 (eighty-nine thousand nine hundred and four) tenge, a state duty in the amount of 48,179 (forty-eight thousand one hundred and seventy-nine) tenge, expenses related to a perfect executive inscription in the amount of 6,605 (six thousand six hundred five) tenge. We disagree with the arguments stated in the court's decision of October 28, 2022 in civil case No. 7520-22-00-2/5584 on the recovery of accounts receivable. We consider the decision of the court of first instance to be illegal, unjustified and subject to cancellation on the following grounds:
From the descriptive part of the court's decision, it was established that according to the survey reports, the defendant does not use the object of thermal energy consumption - the hot water supply system, the heating system is unified with a multi-storey residential building, however, the defendant does not pay for heating. As a result of improper fulfillment of obligations, the defendant had accounts receivable for thermal energy as of September 20, 2021 in the amount of 4,425,537 tenge, in addition, the amount of the penalty (penalty) is 1,802,948 tenge. The court also points out in the reasoning part that the court found that the parties had previously concluded a contract for the release and consumption of thermal energy No. 11464\8 dated October 09, 2003, the subject of which was the supply of thermal energy by the plaintiff to the defendant in the form of the above-mentioned non-residential premises. Dear Board of Appeal, the fact is that the Almaly District Court No. 2 did not take into account that the defendant did not receive any contracts from the Plaintiff on purpose and or by registered mail and, accordingly, did not sign the Contract except for contract No. 11464\8 dated October 09, 2003. Whereas the contract for the supply and consumption of thermal energy is renegotiated annually by sending the original contract to the consumer. In addition, the plaintiff in the lawsuit argues that, according to the Survey Reports, the object of thermal energy consumption is an office located at Tole bi. d., Almaty. ...., 13th technical floor, the consumer does not use the hot water supply system, the heating system is unified with a residential multi-storey building – we agree with the Plaintiff's arguments, since in reality the Defendant does not use the hot water supply system and only pipes pass through the Defendant's non-residential premises, where the Defendant has been asking the Plaintiff for several years to wrap or isolate the pipes or recalculate only for the heat that comes from the passing pipes and not per square meter as the Plaintiff expects. The defendant uses heat from electricity and, accordingly, does not need services to provide a hot water supply system. In accordance with Article 6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation should be interpreted in accordance with the literal meaning of their verbal expression. 68, 72 of the Civil Procedure Code of the Republic of Kazakhstan, Each party must prove the circumstances to which it refers as the grounds for its claims and objections, each evidence is subject to assessment taking into account relevance, admissibility, reliability.
For the purpose of a comprehensive, complete and objective consideration of the civil case, we sent a Petition to the court for additional evidence, where the court requested:
Demand calculations of debts for thermal energy;
Request calculations on pricing for thermal energy;
Request calculations for contractual loads for thermal energy;
The grounds for applying the tariff for thermal energy.
The court fully satisfied this request, however, the plaintiff provided the following information: "Charges for consumed thermal energy have been fulfilled: - from 15.10.2013 to 07.04.2015, according to clause 13, clause 4 of Contract No. 190001 – the amount of thermal energy supplied by the Supplier and accepted by the Consumer is determined by the meter readings. In the absence of a metering device from the consumer, the amount of thermal energy will be determined by calculation, using a tariff (for other consumers who do not have household metering devices) in the amount of 6,374.22 tenge without VAT, according to the order approving tariffs, tariff estimates 78-OD dated 07/25/2012; - from 24.10.2015 to 07.04.2016 by settlement, using a tariff (for other consumers who do not have household metering devices) in the amount of 7,043.14 tenge without VAT, according to the order approving tariffs, tariff estimate 146-OD dated 26.07.2015; - from 24.10.2016 to 11.12.2016 by settlement, using a tariff (for other consumers who do not have household metering devices) in the amount of 7,594.32 tenge without VAT, according to the order approving tariffs, tariff estimate 126-OD dated 25.07.2016; - from 12.12.2016 to 31.03.2017, based on the actual readings of the PUT, deducting the thermal load of each facility in percentage terms in proportion to the area, according to the acts on connecting (disconnecting) thermal energy in accordance with the Tariff Formation Rules approved by Order No. 90 of the Minister of National Economy of the Republic of Kazakhstan dated November 19, 2019, with the application of the tariff (for other consumers with household metering devices) in the amount of 4 983.59 tenge excluding VAT, according to the order on approval of tariffs, tariff estimate 126-OD dated 07/25/2016; - from 04/01/2017 to 12/31/2017, according to the actual readings of the PUT, with the application of a tariff (for other consumers with household metering devices) in the amount of 4,693.75 tenge without VAT, according to the order approving tariffs, tariff estimates 40-OD dated 03/06/2017; - from 01.01.2018 to 01.01.2022, according to the actual readings of the PUT, with the application of a tariff (for other consumers with household metering devices) in the amount of 5 083.5 tenge without VAT, according to the order approving tariffs, tariff estimate 138-OD dated 13.12.2017. - from 01.01.2022 to 30.09.2022, according to the actual readings of the PUT, with the application of a tariff (for other consumers with household metering devices) in the amount of 5,846.03 tenge without VAT, according to the order approving tariffs, tariff estimates 143-OD dated 11.01.2022." From the above, it can be understood that in each tariff increase on the part of the plaintiff, in practice, contracts were concluded with consumers, but we did not sign the contracts and did not receive them. In addition, the Plaintiff did not provide to the court, as indicated in the plaintiff's arguments, "orders approving tariffs, tariff estimates" where it would be possible to determine the real cost of consumed thermal energy, and appoint an expert examination to determine the real cost of consumed thermal energy.
272 of the Civil Code of the Republic of Kazakhstan, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements. In accordance with Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs - also the rules of business ethics. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed. We also believe that the Plaintiff violates the requirements of good faith, reasonableness and fairness provided for in Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan. In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
According to Article 427 of the CPC, the grounds for revoking or changing a court decision on appeal are: incorrect determination and clarification of the range of circumstances relevant to the case; failure to prove the circumstances established by the court of first instance that are relevant to the case; inconsistency of the conclusions of the court of first instance set out in the decision with the circumstances of the case; violation or improper application of the norms of substantive or procedural law, as well as substantive law norms, are considered violated or improperly applied if the court: has not applied the law to be applied; applied a law that cannot be applied; misinterpreted the law. In accordance with Articles 401, 402, 403, 404 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated that an appeal may be filed against court decisions that have not entered into force. The right of appeal against a court decision belongs to the parties and other persons involved in the case, and are considered by the appellate judicial board for civil cases of the regional and equivalent courts in a collegial composition of at least three judges of the board. Appeals are filed through the court that issued the decision. An appeal may be filed within one month from the date of the final decision, and by persons who did not participate in the trial, from the date of sending them a copy of the decision.
The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law. Based on the above and guided by Articles 401, 402, 403, 404 of the CPC RK,
I ask the Court:
To satisfy the Defendant's appeal against the Decision of the District Court No. 2 of Almaly district of Almaty dated October 28, 2022;
The decision of the District Court No. 2 of Almaly district of Almaty dated October 28, 2022 on the collection of accounts receivable – to cancel;
The Plaintiff's claims against the Defendant for the recovery of accounts receivable should be left without satisfaction.
Sincerely, Representative by Proxy Lawyer: ___________/Sarzhanov G.T. "___"___________2022 the year
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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